MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.
The principal question in these cases is whether Chimel v. California, 395 U.S. 752 (1969), should be applied retroactively either to the direct review of petitioner Williams' conviction or in the collateral proceeding initiated by petitioner Elkanich.
In No. 81, federal agents on March 31, 1967, secured a warrant to arrest petitioner Williams on charges of selling narcotics in violation of 21 U. S. C. § 174. Williams was arrested at his home that night. A quantity of heroin was discovered and seized in the course of a search incident to the arrest. The trial court sustained the search and the heroin was introduced in evidence. Williams was convicted and sentenced to a 10-year prison term. The judgment of conviction was affirmed by the Court of Appeals for the Ninth Circuit. Williams v. United States, 418 F.2d 159 (CA9 1969). That court held: (1) that our intervening decision in Chimel v. California, supra, was not retroactive and did not govern searches carried out prior to June 23, 1969, the date of that decision; and (2) that the search was valid under pre-Chimel law evidenced by United States v. Rabinowitz, 339 U.S. 56 (1950), and Harris v. United States, 331 U.S. 145 (1947). The Court of Appeals also
In No. 82, petitioner Elkanich was convicted on three counts of selling narcotics in violation of 21 U. S. C. § 174. He was sentenced to three concurrent 10-year sentences. The evidence introduced included marked bills given by federal agents to an intermediary to use in purchasing narcotics. The bills were seized during a search of petitioner's apartment following his arrest there. The search was challenged at trial on the ground that the arrest was invalid. Both the arrest and the incident search were upheld at trial and on direct appeal, Elkanich v. United States, 327 F.2d 417 (CA9 1964), as well as by the District Court and the Court of Appeals in subsequent proceedings brought by petitioner under 28 U. S. C. § 2255. We granted the petition for certiorari to consider the effect, if any, of our Chimel decision, which intervened when the appeal from denial of petitioner's § 2255 application was pending in the Court of Appeals. 396 U.S. 1057 (1970). We affirm the judgments in both cases.
Aside from an insubstantial claim by Williams that his arrest was invalid,
In Linkletter v. Walker, 381 U.S. 618 (1965), we declined to give complete retroactive effect to the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 (1961). Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored. Since that time, we have held to the course that there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the Bill of Rights.
It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials. Mapp v. Ohio cast no doubt on the relevance or probity of illegally seized evidence but excluded it from criminal trials to deter official invasions of individual privacy protected by the Fourth Amendment. Katz v. United States, 389 U.S. 347 (1967), overruled Olmstead v. United States, 277 U.S. 438 (1928), and Goldman
The petitioners in both Linkletter and Desist were convicted in proceedings that conformed to all then-applicable constitutional norms. In both cases the government involved had a concededly guilty defendant in custody and substantial unsatisfied interests in achieving with respect to such defendant whatever deterrent and rehabilitative goals underlay its criminal justice system. Each defendant, Linkletter by the habeas corpus route, and Desist on direct appeal, claimed the benefit of a later decided case and demanded a new trial. But ordering new trials would have involved not only expense and effort but the inevitable risk of unavailable witnesses and faulty memories; the authorities might not have had the evidence they once had and might have been foreclosed from obtaining other evidence they might have secured had they known the evidence they were using was constitutionally suspect. Moreover, it was not essential to the deterrent purpose of the exclusionary rule that Mapp and Katz be given retroactive effect; indeed that purpose would have been only marginally
Considering that Desist represents the sound approach to retroactivity claims in Fourth Amendment cases, we are confident that we are not constitutionally bound to apply the standards of Chimel to the cases brought here by Elkanich and Williams. Both petitioners were duly convicted when judged by the then-existing law; the authorities violated neither petitioner's rights either before or at trial. No claim is made that the evidence against them was constitutionally insufficient to prove their guilt. And the Chimel rule will receive sufficient implementation by applying it to those cases involving the admissibility of evidence seized in searches occurring after Chimel was announced on June 23, 1969, and carried out by authorities who through mistake or ignorance have violated the precepts of that decision.
Both from the course of decision since Linkletter and from what has been said in this opinion, it should be clear that we find no constitutional difference between the applicability of Chimel to those prior convictions that are here on direct appeal and those involving collateral proceedings. Nor in constitutional terms is there any difference between state and federal prisoners insofar as retroactive application to their cases is concerned.
The opinions filed in these cases offer various answers to the question. We would judge the claims in both Williams and Elkanich by the law prevailing when petitioners were searched. Surely this resolution is no more legislative, and no less judicial, than that of MR. JUSTICE HARLAN. He feels compelled to apply new overruling decisions to cases here on direct review but deems himself free, with some vague and inscrutable exceptions,
We are also unmoved by the argument that since the petitioners in cases like Mapp, Duncan v. Louisiana, 391 U.S. 145 (1968), and Katz have been given relief, when it was only by chance that their cases first brought those issues here for decision, it is unfair to deny relief to others whose cases are as thoroughly deserving. It would follow from this argument that all previous convictions that would be vulnerable if they occurred today would be set aside. Surely this is the tail wagging the dog. The argument was fairly met and adequately disposed of in Stovall v. Denno, 388 U.S. 293, 301 (1967). We see no reason to repeat or reconsider what we said in that case.
It is urged that the prevailing approach to retroactivity involves confusing problems of identifying those "new" constitutional interpretations that so change the law that prospectivity is arguably the proper course. But we have no such problems in these cases since to reach the result it did the Court in Chimel found it necessary to disapprove Harris and Rabinowitz and under those cases the search in Chimel and the searches now before us would have been deemed reasonable for Fourth Amendment purposes. Moreover, the idea that circumstances may require prospectivity for judicial decisions construing the Constitution is an old one; it is not a new problem for the courts. It has not proved unmanageable and we doubt that courts and judges have suddenly lost the competence to deal with the problems that it may present.
The judgments are
MR. JUSTICE BLACK, while adhering to his opinion in Linkletter v. Walker, 381 U.S. 618, 640 (1965), concurs in the result on the ground that he believes that Chimel v. California, 395 U.S. 752 (1969), was wrongly decided.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of these cases.
[For opinion of MR. JUSTICE HARLAN, concurring in the judgment in No. 82 and dissenting in No. 81, see post, p. 675.]
MR. JUSTICE BRENNAN, concurring in the result.
Chimel v. California, 395 U.S. 752 (1969), applied principles established by a long line of cases
Accordingly, we are presented in these cases with the question whether Chimel should be applied to require the exclusion at trial of evidence which is the fruit of a search, carried out before our decision in Chimel, and which would be lawful if measured by the standards of Harris and Rabinowitz, but unlawful under the rule of Chimel. The Court today holds that the fruits of searches made prior to our decision in Chimel may be used in criminal trials if the searches may be justified
All three factors imply that the rule of Chimel should be applied only to searches carried out after Chimel was decided.
Like the Fifth Amendment's protection against compulsory self-incrimination, the warrant requirement of the Fourth Amendment stakes out boundaries beyond which the government may not tread in forcing evidence or information from its citizens. When coercion, impermissibly under the Fifth Amendment, has actually produced an involuntary statement, we have invariably held that the fruits of that unconstitutional coercion may not be used to prosecute the individual involved for crime. E. g., Rochin v. California, 342 U.S. 165, 173 (1952) (Frankfurter, J.); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Boyd v. United States, 116 U.S. 616, 630-635, 638 (1886).
The factor of reliance by law-enforcement officials on Harris and Rabinowitz points in the same direction. As we recognized in Chimel itself, Fourth Amendment jurisprudence has often followed a tortuous path. 395 U. S., at 755-762. So long as Harris and Rabinowitz were not visibly overruled, we cannot be surprised that policemen and those who offer them guidance may not have scrutinized their doctrinal underpinnings for signs of erosion. And the extent of reliance, it appears, has been considerable. The Government represents, and petitioners do not seriously dispute, that a very substantial number of searches have been carried out in reliance upon these cases. In many of these, there is no reason to doubt that a warrant could and would have been obtained if the officials involved had been aware that a warrant would be required. This factor as well, therefore, implies that Chimel should have only prospective application.
Finally, we must evaluate the probable impact of retroactive application on the administration of justice. Persons convicted through the use of evidence inadmissible under Chimel have been found to have engaged in conduct that the government involved may legitimately punish. Chimel casts no doubt upon the propriety of the government's interest in punishing those who have engaged in such conduct. Accordingly, it may fairly be assumed that retroactive application of its standards would result in a substantial number of retrials. Yet Chimel likewise casts no doubt upon the reliability of the initial determination of guilt at the previous trial. Moreover, the legitimate reliance of law-enforcement officials on Harris and Rabinowitz, as already noted, may well have led them to conduct a warrantless search merely because the warrant requirement, although easily satisfied, was understandably not understood. The consequence of this is that retroactive application of the standards applied in Chimel would impose a substantial burden upon the federal and state judicial systems, while serving neither to redress knowing violations of individual privacy nor to protect a class of persons the government has no legitimate interest in punishing.
This is not to say, however, that petitioners are to be denied relief because they are probably guilty. "[T]here is always in litigation a margin of error, representing error in factfinding." Speiser v. Randall, 357 U.S. 513, 525 (1958). The constitutional requirement that guilt in criminal cases be proved beyond a reasonable doubt serves to limit, but cannot eliminate, the number of criminal defendants found guilty who are in fact innocent. See In re Winship, 397 U.S. 358, 370-372 (1970) (concurring
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
After studying afresh the pattern of the Court's retroactivity decisions since Linkletter v. Walker, 381 U.S. 618 (1965), I conclude that a decision of this Court construing the Constitution should be applied retroactively to all cases involving criminal convictions not yet final at the time our decision is rendered. Sound jurisprudential reasoning, so well articulated by MR. JUSTICE HARLAN in his separate opinion covering the present cases, post, p. 675, in my view requires that cases still on direct review should receive full benefit of our supervening constitutional decisions. I am persuaded that
I disagree somewhat with MR. JUSTICE HARLAN as to the proper approach to retroactivity for cases arising on habeas corpus or other modes of collateral attack. In such cases I believe it is best to employ the three-part analysis that the plurality undertakes today in deciding the retroactivity of the rule in Chimel v. California, 395 U.S. 752 (1969). This mode of analysis was foreshadowed in Linkletter, where the question was whether the rule of Mapp v. Ohio, 367 U.S. 643 (1961), should be applied on collateral review. The method commends itself, once the point of finality after direct review is passed, as a careful and appropriate way of adjudicating the "procedural" rights of litigants in view of the purposes of a new decisional rule and the concerns of effective law enforcement. In particular, if the purposes of a new rule implicate decisively the basic truth-determining function of the criminal trial, then I believe the rule should be given full retroactive application, for the required constitutional procedure itself would then stand as a concrete embodiment of "the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937).
In light of the above, I concur in the Court's disposition of No. 82. That case is before us on collateral review. For cases in such a posture the mode of analysis used by the plurality is appropriate, and I agree that the Chimel rule should not be applied retroactively to such cases.
No. 81 is before us on direct review. Since there is a clear violation of Chimel on the facts, I would reverse the judgment below, for I believe that the same constitutional rule should be applied to adjudicate the rights of the petitioner in No. 81 as was applied in Chimel's case.
Elkanich was arrested without a warrant in his apartment. He does not argue that the arresting agents did not have probable cause to arrest but asserts that the search violated the Fourth Amendment. Three agents came to petitioner's apartment, and, after the door was opened by his wife in response to a knock, entered and immediately arrested petitioner. After handcuffing Elkanich, the agent in charge called for assistance. Three more agents arrived within 15 minutes, and they searched the four-room apartment for over an hour. The supervising agent asked petitioner if he had any large sums of cash, guns, "or anything of that kind" in the apartment. Petitioner at first said no, but later indicated there was some money in a broom closet. The agent found $500 above the molding at the top of the closet, returned to the living room, and searched petitioner and his wife, finding $200 on each of them. Another agent then found a second roll of bills above the molding in the broom closet, this one totaling about $1,000. Two other items later introduced in evidence were seized from a closet in the living room. Of the total of nearly $2,000 seized, $1,550 consisted of marked bills used by an undercover agent to purchase narcotics from one Rios, whom petitioner was alleged to be supplying.
The Government here argues that exigent circumstances justify the search without a warrant. The argument is that the presence of petitioner's wife in the apartment left the agents only two choices: (1) to postpone searching until a warrant could be secured, a course which would entail either some sort of control over the wife's activity or a risk that evidence would disappear; or (2) to search the apartment immediately, as they did.
Because of our resolution of the retroactivity question, we find it unnecessary to pass on this contention.
In rejecting the distinction between cases pending on direct review and those on collateral attack, the Court in Johnson v. New Jersey, 384 U.S. 719, 732 (1966), stated:
"Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced."
"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
In both Johnson and Stovall, we frankly acknowledged that "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a `question of probabilities.' " 388 U. S., at 298. Where we have been unable to conclude that the use of such a "condemned practice" in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect, we have not accorded retroactive effect to the decision condemning that practice. See e. g., DeStefano, 392 U. S., at 633-634 (quoting Duncan): " `We would not assert, however, that every criminal trial—or any particular trial—held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.' "
Our Brother HARLAN criticizes these decisions, stating that he finds "inherently intractable the purported distinction between those new rules that are designed to improve the factfinding process and those designed principally to further other values." Post, at 695. Earlier, he suggests that "those new rules cognizable on habeas ought to be defined, not by the `truth-determining' test, but by the Palko [v. Connecticut, 302 U.S. 319, 325 (1937)] test." Post, at 694. But operating within the confines of a rule that seeks to determine, inter alia, whether a newly proscribed practice has probably produced factually improper results in cases where it was employed is surely to proceed with more definite bearings than are provided by a "test" that seeks to define those procedures which are "implicit in the concept of ordered liberty." See n. 8, infra.
Under MR. JUSTICE HARLAN's approach, X automatically receives the benefit of the new rule—because we are a court of law somehow bound to decide all cases here on direct review in accordance with the law as it exists when the case arrives for consideration. Although we remain a court of law, Y may or may not receive the benefit of the new rule, the result depending on whether the new rule is designed to correct a practice that has come, over time, to shock our Brother's conscience. Under our approach today, the results as to X and Y would be consistent, as they should be.
As a perceptive jurist has remarked:
"[W]hen a court is itself changing the law by an overruling decision, its determination of prospectivity or retroactivity should not depend upon the stage in the judicial process that a particular case has reached when the change is made. Too many irrelevant considerations, including the common cold, bear upon the rate of progress of a case through the judicial system." Schaefer, supra, n. 3, at 645.